Lord Howell of Guildford: My Lords, the Minister spoke about making the situation clear to both sides, but it is not obvious, and did not the comments of the noble Baroness, Lady Cox, make it even clearer, that this is not a level killing field with two sides locked in deadly combat and that the Government in Khartoum do not care anything for their citizens, are bent upon encouraging the most appalling atrocities and are continuing to do so in defiance of world opinion? Is it not indeed time that very much firmer sanctions were mobilised against the Khartoum Government and more were pressed for in the United Nations? What will happen when the African Union mission ends, which is any day now in September and October, when the UN mission will come, at the earliest, in January? How will the killing going on in the mean time be stopped unless we have a really firm grip on the Khartoum Government of the kind that is so far lacking?

Lord Triesman: My Lords, in the meeting that preceded the United Nations General Assembly last year, the world community agreed that a responsibility to protect should be part of the operating code of the United Nations. That means that the first responsibility is with the government concerned and then it passes, irrespective of sovereignty, to the international community. In Security Council Resolution 1706, drafted by the United Kingdom, that is explicitly written into the terms of the decision by the Security Council, taken without a vote against and with three abstentions. In the final analysis, the Security Council—and the United Nations—will be tested by whether it takes that responsibility seriously with the full implications that it bears.

The Lord Bishop of Coventry: My Lords, is the Minister aware that there appears to be a concerted campaign by the Khartoum government to muzzle the freedom of the press in northern Sudan? Does he agree that this is a violation of the terms of the interim constitution and that it also seriously undermines any attempt at democratic transformation?

Lord Triesman: My Lords, I completely agree. It is one of a catalogue of areas in which the government in Khartoum disregard any form of international pressure. They are in breach of the peace agreement they signed just a couple of months ago in every military action that they have embarked on in these past few months.

Lord Avebury: My Lords, has not the situation changed since the Islamic Courts Union declared a jihad against any foreign forces entering Somalian territory, including the deployment of IGADSOM, as has been decided by the African Union Peace and Security Council? Does the Minister consider there to be any scope for a discussion between the AU and the Islamic Courts Union on a variation of the proposal that would be acceptable to them, either in terms of the states that are providing forces or the terms of reference of the mission? Will it be explained clearly to the Islamic Courts Union that if it does not agree to such a mission, the likelihood is that President Abdullahi Yusuf will call on the Ethiopian forces to help to protect him?

Lord Triesman: My Lords, the peace discussions in Khartoum are about to enter a third phase, and there have also been useful contacts in the past couple of weeks in Nairobi. The aim of the peace discussions is to provide the conditions under which a peace-support operation would work successfully with the agreement of all parties in Somalia. It remains quite clear to me that if the Islamic Courts Union cannot accept peace proposals, the Security Council will have to consider very urgently the decisions taken by the frontline states on security in the region.

The Earl of Onslow: My Lords, are the Americans supporting the warlords in Somalia? If so, will Her Majesty's Government make representations to them to stop? The trouble in Somalia was caused by gangs of warlords shooting people up and engaging in total mayhem. Even a strongly Muslim government would be more peaceful and more preferable to what has gone before.

Lord Triesman: My Lords, I think the noble Earl is referring to an allegation some while ago that the United States had supported several warlords and their armed militias. Whether or not people think that this is the best outcome for Somalia, the move of the Islamic Courts Union against the warlords has more or less taken them out of any part of the equation, as matters stand. The problems now lie principally between the transitional federal government of President Yusuf—the only government who are supported by the United Nations as the legitimate government—and the Islamic Courts Union.

Lord Triesman: My Lords, I do not think that the Islamic Courts Union is a homogenous body in any sense. It contains some elements which are moderate and plainly disposed towards the peace negotiations that I have described. It contains some elements—they may be in the ascendancy at the moment—which I would describe as being on the end of the politics of al-Qaeda and very dangerous. The reality is that we must make sure that moderate parties on both sides—the transitional government and the Islamic Courts Union—engage in discussions and try to get to a new balance between the different forces. It would be of no benefit to this country to see the kind of takeover of Somalia which would create a further serious international security problem.

Lord Triesman: My Lords, there are two important questions in the noble Baroness's supplementary question. First, the precise purpose of an IGAD force, were it to be introduced in Somalia, would have to be agreed with the Security Council. Its mandate could include anything that the Security Council deemed appropriate. If it is introduced, I would hope that it would be sufficiently robust to do the job properly. On the second question, which requires some comment, the mandate that the AMIS force has in Darfur could and should have been used far more extensively than observation. At the beginning it was.

Lord Warner: My Lords, of course I can. The Government have already exceeded the 75 per cent vaccination of high risk groups which the World Health Organisation recommended for 2010—they did it last year, and we are continuing along that path. It is for GPs to order their vaccines from the supplier; they do not do it through the Department of Health. As I said, a maximum of 3 per cent is available for private sales, which is meant to ensure that high risk groups for vaccines go to their GPs for vaccination.

Lord Thomas of Gresford: My first task is to declare an interest as the recently appointed president of the Association of Military Advocates and to indicate that I am currently engaged in a court martial and therefore have some interest in this matter.
	Clause 11(2) sets out an offence in these terms:
	"A person subject to service law commits an offence if ... his behaviour towards a superior officer ("B") is threatening or disrespectful".
	The amendment would remove "or disrespectful".
	The basis of my argument is that threatening a superior officer and being disrespectful to a superior officer are two entirely disparate situations. The huge distinction between making a threat and being disrespectful is recognised by subsection (4), which provides for a maximum of 10 years' imprisonment for the former offence but only two years for the latter one. My objection to the word "disrespectful" is that it is so wide that it could cover anything that an officer believes to be disrespectful to him—dumb insolence, walking away, muttering under the breath and so on. It lacks clarity and could lead to differing decisions depending upon the make-up of the court martial court. Indeed, the Joint Committee on Human Rights was concerned to seek from the noble Lord, Lord Drayson, a definition of "disrespectful".
	Another problem is that there is no statutory defence. It is very interesting to compare this provision with Article 89 of the American Universal Code of Military Justice, which creates a similar offence, but separately from that of being threatening. The code defines the offence in this way:
	"Any person subject to this chapter who behaves with disrespect towards his superior commissioned officer shall be punished as a court-martial may direct".
	But, unlike this proposed legislation, it contains a definition of "disrespect":
	"Disrespectful behavior is that which detracts from the respect due the authority and person of a superior commissioned officer. It may consist of acts or language, however expressed, and it is immaterial whether they refer to the superior as an officer or as a private individual. Disrespect by words may be conveyed by abusive epithets or other contemptuous or denunciatory language. Truth is no defense. Disrespect by acts includes neglecting the customary salute or showing a marked disdain, indifference, insolence, impertinence, undue familiarity or other rudeness in the presence of the superior officer".
	Your Lordships may appreciate my comment that "disrespectful" is an extremely broad idea. There is in the American code, however, a special defence:
	"A superior commissioned officer whose conduct in relation to the accused under the circumstances departs substantially from the required standards appropriate to that officer's rank or position under similar circumstances loses the protection of this article. That accused may not be convicted of being disrespectful to the officer who has so lost the entitlement to respect protected by Article 89".
	Your Lordships may feel that that is a very sensible, special statutory defence. Furthermore, unlike the two-year period of imprisonment that is the maximum for the offences suggested in the Bill, the maximum punishment in America is a bad-conduct discharge, forfeiture of all pay and allowances and confinement for one year.
	Disrespect is a concept that ought not to be linked as a criminal offence with threatening behaviour, which of course is very serious. I cannot think of any instance of being disrespectful which would not be covered by the familiar offence repeated in Clause 19 of conduct,
	"prejudicial to good order and discipline"
	which, incidentally, carries exactly the same penalty. But case law on conduct prejudicial to good order and discipline allows a defendant to argue that he spoke the truth or that his offending words or gestures were not prejudicial to good order and discipline.
	I am indebted to Mr Gilbert Blades, a very experienced solicitor-advocate in this field, for his recollection of a case in which a sergeant called the regimental sergeant-major's argument at a sergeants' mess a load of "unparliamentary language". I will not give your Lordships the precise terms. The sergeant was charged with conduct prejudicial to good order and discipline, and the tribunal found that the regimental sergeant-major's argument had indeed been a load of unparliamentary language.
	The purpose of the amendment is to separate the offence of being "disrespectful"; at the very least it should be clearly defined, and a special defence similar to that set out in the United States statute should be incorporated in it. But since that would take some drafting, I will leave it for a later stage of the Bill. I beg to move.

Lord Garden: I rise to speak to Amendments Nos. 52 and 53, which are amendments to Clause 25. I assume that the Minister is very much in favour of this clause as we have seen, by virtue of the National Audit Office, that his own department is sometimes negligent in this respect.
	My amendment attempts to try to ensure that this clause is not applied too rigorously. |Given NAO reports over the years, that would mean that the military justice system would grind to a halt since waste appears to be endemic. It involves a more serious point about who we are we trying to catch with this approach. Let me take a concrete example. We keep discussing the eight Chinook HC3s, which must presumably fall within the category of having been authorised to be modified in such a way as to cause a waste of service property—to the tune of £150 million, or whatever it is.
	Who does this clause catch? There is a chain of people, some of whom knowingly do it—presumably because they have the expertise—and some perhaps unknowingly. Or is it really aimed at very junior personal doing minor wastage on units? If so, that would be unfortunate. My amendments are probing in nature to show exactly where the buck will stop because it could be an important clause if correctly targeted. I beg to move.

Lord Drayson: I agree with noble Lords focusing on this very important area. The noble Lord, Lord Garden, raised the point on the Mark 3 Chinook helicopters. He knows very well the importance of making sure that we do not misapply or waste public money. This is a difficult area because have to ensure that we are defining the offence in this clause, such that it takes into account a reckless or negligent misuse or waste where such negligence or misuse could have serious consequences for the unit. Therefore, we believe that it is important for us to maintain that wider definition, not to have it limited by the wording, "so knowingly to do". The important point concerns recklessness or negligence. It is important for me to point out that an offence under the clause is not so serious as ever to justify imprisonment. That penalty is not available under the clause.
	Amendment No. 53, providing that a serviceman who misapplies or wastes public or service money commits no offence if his actions were on the orders of a superior officer, is unnecessary, because if a serviceman acted on the basis of an order, he would not have the necessary intent, negligence or recklessness to commit an offence. On the question of the noble Lord, Lord Garden, of who this is intended to catch, we intend to be able to take action where someone has acted in a reckless or negligent way and, as a result, has led to the misuse or waste of public money.

Lord Thomas of Gresford: This amendment would retain the present position under the Army Act 1955 whereby a person may not be charged with an offence of treason, murder, manslaughter or rape if that offence was committed in the United Kingdom. I have followed almost exactly the wording of the existing provision and the historic provision in the Army Act.
	Perhaps I may say a few words broadly. The justification for courts martial for serious offences committed abroad is entirely accepted. It is in the interests of a serviceman or a civilian who is subject to service jurisdiction that, if he is charged with serious offences abroad, he should have available to him a tribunal where the law of England and Wales is applied, the proceedings are conducted in the English language and the procedures are appropriate. I have no quarrel with the present situation, and the continuing situation under the Bill, that there should be court martial hearings abroad for serious offences. However, no proper justification appears to have been put forward for extending the jurisdiction of courts martial to the serious offences of treason, murder, manslaughter or rape when a serviceman commits those offences in the United Kingdom itself and is therefore subject to ordinary criminal procedures. He will be tried before a jury in the Crown Court, and that is something that frequently happens.
	In the letter which he has helpfully sent to us on this topic, the Minister said that we have to recognise that the court martial system is compliant with the European Convention on Human Rights. Although that may be so—and I do not necessarily say that it is—it has been a long struggle to reach that position It is a long struggle which has been carried out not by the Government but by defence advocates who on numerous occasions have taken the Government to the European Court of Human Rights to obtain judgments in their favour. Here I recognise the sterling work of Mr John Mackenzie, Mr Gilbert Blades and others who have brought these cases forward. For example, in 1997, in the case of Findlay, the European Court held that the system of courts martial was not compliant because the convening officer prosecuted the case, appointed the panel which tried it, and then reviewed the conviction and sentence imposed by the panel. He could have, if he had so desired, reversed it. As a result of that judgment in 1997—when of course the Government were arguing to maintain the system as it then was—the Armed Forces Act 2001 was passed.
	However, that was not the end of the story. In 2002, in Morris v the United Kingdom, the European Court again held that the court martial system was not compliant on a number of grounds: first, that the junior officers who formed part of the panel were subject to reports on how they had carried out their duties; and, secondly, the court was unhappy with the reviewing authority. The court thought it inappropriate that an extrajudicial body should decide on the conviction and sentence subsequent to the original hearing. The Judicial Committee of this House actually disagreed with that decision in the case of Boyd, but the Armed Forces Act 2001 and the Naval Discipline Act 1957 (Remedial) Order 2004 altered the system. All sorts of things have been pressed not by the prosecution but by the defence, and as a consequence, by pushing and shoving, the court martial system has come closer to the sort of system that we are familiar with in the civil jurisdiction in this country. However, it certainly has not arrived there yet. This Bill is another step on the way, but there are further steps to be taken. If the Government were to accept our later amendments to the Bill, we might reach a satisfactory situation, but the Government's present approach appears to be, as it always has been, to reject with scorn any attempt to try to amend the system.
	For example, it is still the case that instead of a unanimous verdict by a jury of 12 people, or at the very least a majority verdict of not less than 10 to two, a court martial is decided by a simple majority. If five sit, three to two is enough for conviction; if seven sit, four to three is enough. Then, sentencing is by the panel itself. Officers are brought together for a court martial—and will continue to be so under the Bill—and upon them, without any training or background at all, is put the responsibility of sentencing. Of course they can take the advice of the judge advocate who sits with them but, except in the case of a tie when I think he has a casting vote, he has only one vote. That is unsatisfactory. It is also unsatisfactory that panels do not include a cross-section of service personnel. As a result of pressure from defence advocates, warrant officers were introduced to panels, which now frequently include a warrant officer; civilians were introduced to sit where civilian defendants were before a court martial, and so on.
	I recall that one of the last procedures to go went as a result of a Question that I asked in this House about whether it was right that a defendant in a naval court martial should be marched in at the point of a cutlass. Between my tabling of the Question and the Minister of the day, the noble Lord, Lord Bach, replying to it, that hallowed custom—which of course the Navy loved—had suddenly disappeared. In the time I have been involved in courts martial the swords have gone and the stripping the defendant of his belt and cap, the marching and the saluting have all disappeared. Indeed, today—again as a result of pushing by the defence—the panel sits separately from the judge advocate.
	His honour Judge Blackett, who is the Judge Advocate General, gave evidence to the Select Committee on this Bill in another place. His memorandum stated:
	"The military system should be the equivalent of the civilian system in all respects except where the requirements of operational effectiveness make the differences impossible".
	We have an enlightened Judge Advocate General who has said that he believes the court martial system should reflect the Crown Court in all respects except where there are good operational reasons for differences. He is trying to ensure that a court martial is regarded as on an equivalent footing to a Crown Court. But we are not there. Unless the amendments that we have put down—which I believe were suggested by the Judge Advocate General in his evidence to the Select Committee on the composition of the panel, on the question of sentencing by a board which has no experience and on the question of majority verdicts—are agreed, we will not have a system for trying servicemen in this country which is the equivalent of a Crown Court.
	Why, therefore, should we have this change to allow courts martial to deal with treason, murder, manslaughter and rape committed in this country? Who is to decide? Nowhere in the Bill is it set out who decides whether a serviceman should be tried by court martial for murder or for rape as opposed to sending him to the Crown Court to be tried in the ordinary way by a jury. We have a system proposed which is, in my view, unacceptable.
	I notice that Major-General Howell, the head of the prosecuting authority, in his evidence to the Select Committee, justified the change for the following reason:
	"I can see a situation where if you had a soldier committing murders in a lot of different countries, one of which is the UK, it may be easiest for a Court Martial to try the case because the Court Martial can move around countries and listen to witnesses locally and has that other advantage. I do think it is something that is going to be very rare, to be frank, but I can imagine the situation might exist".
	It has never happened. There has never been a serial murderer who has been murdering all round the world who has been tried by court martial. Yet that is the only justification that the head of the prosecuting service, Major-General Howell, could put forward for grasping this additional jurisdiction to the courts martial in this country.
	Supposing someone were to say to a policeman, "You are part of a discipline service and there are certain things about policemen which are peculiar. Therefore, it is only right that if you are charged with murder or with committing a serious offence, you should be tried not by a jury but by a panel of senior policemen". Can you imagine the reaction of the people of this country if such a situation arose? Let us take, for example, the de Menezes case, where that unfortunate man was shot on a tube, and suppose that a police officer involved in that situation were to be dealt with by a panel of policemen. What is the difference?
	There are practical reasons for courts martial dealing with serious matters abroad; I have outlined those and accepted them. But there are no practical reasons, apart from the far-fetched situation imagined by Major-General Howell for that jurisdiction to be exercised in this country.
	I am sorry to have wearied your Lordships for so long on this topic, but it is of considerable importance. A principle of trial by jury—a principle that has always been accepted in relation to servicemen—is being broken for no adequate reason. We cannot allow this to go through without hearing justification and examining it. Let us have some transparency. We may then accept it but I suspect that your Lordships will ultimately reject this claim for additional jurisdiction. I beg to move.

Lord Kingsland: What matters in this amendment is not the detail but the principle that lies behind it. In that sense it is probing amendment. But it is an amendment of great importance, which was heralded during the Second Reading speeches from these Benches.
	The principle is that the rules of engagement should become an absolute statutory defence for a soldier on operations. It must follow, therefore, that the rules of engagement define the criminal law within which the soldier operates. We believe that the rules of engagement should take statutory form. Soldiers have to know where they stand when they are on operations. They are told that if they comply with the rules of engagement they are within the law. Why are the Government prepared to say that informally but not admit it publicly in the Bill? That is the question that the Minister has to answer. He will have some difficulty in doing that if his answer is not co-ordinate with the view that we take.
	Article 7 of the Human Rights Act requires that the criminal law should be composed of rules that have predictable outcomes. It requires that a subject—whether a soldier or a civilian—before undertaking a certain activity should know whether that activity falls within or outside the criminal law. Precisely the same principle should apply to a soldier on operations.
	I entirely accept that the details of the amendment might reasonably be criticised. We have taken a view about the right approach. We would welcome other views on how it should be applied; but we are convinced that the Government have to face up to this and include in the Bill an appropriate statutory defence. I beg to move.

Lord Garden: My Amendment No. 62 would add to the rules of engagement amendment, if they were to be put on a statutory basis. It is a question of what happens when servicemen find themselves operating under the rules of engagement of another nation. Members of the Committee may not be aware that this is happening as we speak.
	On 19 June, I received an Answer to a Written Question about the arrangements for Royal Air Force personnel embedded with US personnel on Predator drones perhaps thousands of miles away from the operations, but who can release weapons and are subject to somebody's rules of engagement. The Minister very helpfully told me:
	"UK embedded personnel act within US rules of engagement, may use US collateral damage methodology and work to US delegated authorities".—[Official Report, 19/06/06; col. WA 54.]
	So on certain occasions, people who are subject to our service law are subject to another nation's rules of engagement. That perhaps gives us an extra dimension of problem on how we put rules of engagement on a statutory basis.
	Turning to the broader aspect of rules of engagement, I should be interested to hear the Minister's reaction. I am not sure whether it is a good idea. My first reaction was that when they are put on a statutory basis, there will perhaps be a tendency for them to be less flexible, which may make life more difficult. I am also slightly concerned that a subsection (7) of the new clause makes observance of the rules of engagement an absolute defence. Of course, you are still required to be proportionate in your response at any stage of warfare. It may be that you can operate under quite robust rules of engagement, but the particular circumstances do not mean that you need to go to their outer edges; you could do something less damaging. We still need to be able to look at the proportionality argument.
	If we were to put rules of engagement on a statutory basis, we must consider how we handle being under those of other nations. I have yet to be convinced that this is the place to put them, however, and will wait to hear what the Minister has to say. I beg to move.

Lord Campbell of Alloway: My name is on Amendment No. 61, and I am grateful to my noble friend Lord Kingsland for his exposition of the importance of the principle at stake.
	I support the spirit of all these amendments. Why? Amendment No. 61— exclusively relating to written rules of engagement, albeit established by a somewhat Byzantine, insufficiently flexible process—could have served as a defence for Clegg, Scots Guardsmen Fisher and Wright and other cases. It must therefore be dealt with, and related and extended to AmendmentNo. 62A to include compliance with orders. It is not readily possible to distinguish between orders and rules of engagement, especially if they are given verbally in the field. Reverting to the principle expounded so well by my noble friend Lord Kingsland, a serviceman must know where he stands.
	The toil of drafting such an amendment could well be in vain, however. Such an amendment should never pre-empt what has been referred to as the new services law, separate and distinct from the civil system. That law on armed combat and peacekeeping recognises realities and, as the noble and gallant Lord, Lord Inge, put it, can be trusted by the servicemen. It would serve as a substantive defence on the basis on which the Army Board rejected the application of DALS for the discharge of the Scots Guardsmen.
	Here I have to declare an interest because I represented them before the Army Board on two occasions and prepared their defence, and called their evidence and that of their commanding officer, who is now General Sir John Kiszely. On the second occasion, General Sir Mike Jackson sat on the board and questioned in depth the three men who gave evidence: the two Scots Guardsmen and the general. The board came to the conclusion that the two guardsmen could not be discharged from the Army because the morning orders of the day for the guardsmen were to stop and search, their rules of engagement were, "Halt or I'll fire" and they were ignored twice. They only had before them a defence of self-defence, which was rejected by the judge, but there was no rejection of what was accepted by the Army Board and General Sir Mike Jackson, which was that they complied with their orders and rules of engagement. The transcript of those proceedings is lying around in the MoD somewhere and forms strong confirmation for the type of amendment on the broader scale that would subsume the amendment that could be produced out of Amendments Nos. 61, 62 and 62A.
	As the noble Lord, Lord Drayson, said, the concept of a military law separate and distinct from the civilian system was spoken to on Second Reading by the noble and gallant Lords, Lord Bramall, Lord Guthrie, Lord Vincent of Coleshill, Lord Inge, Lord Boyce, the noble Lord, Lord Ramsbotham, my noble and learned friend Lord Mayhew of Twysden and other noble Lords. It was heralded by the Judge Advocate General Judge Blackett—I am glad that my noble friend Lord Thomas of Gresford referred to him—in the evidence that he gave to the Select Committee in the other place. It was quoted by the noble Lord, Lord Ramsbotham, on Second Reading and was expressly accepted by the noble and gallant Lord, Lord Boyce. The noble Lord, Lord Truscott, who is an eminent historian, not a lawyer or a soldier, said:
	"If mistakes are made in the name of self-defence or in the heat of battle, the law and the courts should show understanding".—[Official Report, 16/2/06; col. 1276.]
	Lord Bramall, said:
	"Justice cannot be dispensed in a vacuum; it must depend on the circumstances prevailing at the time at the scene of operations and on the rules of engagement, if established".—[Official Report, 14/06/06; col. 242.]
	That remark was expressly approved by my noble and learned friend Lord Mayhew of Twysden, who is in his place. There is a matrix for an amendment which I hope may be tabled on Report that would subsume the three amendments to which we have been speaking.

Lord Ramsbotham: I preface my brief intervention by saying how much I and, I suspect, many of my colleagues have appreciated the care with which the noble Lord, Lord Grayson, has kept us in touch with the process of this Bill and has made certain that we were briefed during the various movements on it. It is highly appreciated and we are very grateful.
	I support what the noble Lord, Lord Kingsland, said. As the nature of operations changes into what General Sir Rupert Smith described in his book as "a war amongst the people", it is ever more important that every member of our Armed Forces committed to such conflicts is absolutely crystal clear on what are the rules of engagement before they are committed to those operations. That means that those rules of engagement must have been considered and worked out in advance by the Secretary of State and the chain of command downwards to include every individual. I suspect that some of the problems in Iraq have arisen because those rules of engagement were not absolutely crystal clear in the minds of everyone concerned. Therefore, it makes sense that the requirement to do that should be in statute so that it cannot be fudged before people are launched.
	I also support the intent behind AmendmentNo. 62 because one type of operation on which we are embarked—United Nations operations—is one in which there is the most complicated preparation of rules of engagement, which will differ in each operation and will apply to contingents from a large number of different forces. Therefore, it is essential, where we are involved with forces from other nations, that those compromises are reached—again, before we go on operations. It is essential, although this is not in the nature of the Bill but in the reform of the United Nations, that we set up machinery to make certain that the rules of engagement of all those committed to United Nations operations are sorted out in the same way as they should be for national operations. That remains paramount.
	I support Amendment No. 62A, tabled by the noble Lord, Lord Campbell of Alloway, because it seems to me to be part of the glue that ties the three amendments together. I therefore support the idea that the three should be taken and considered in great detail before it is decided whether to include them.

Lord Thomas of Gresford: I follow the noble Lord, Lord Ramsbotham, in his expression that the rules of engagement should be crystal clear. The noble and gallant Lord, Lord Vincent, also called for clear direction. My experience relates to the paratrooper trial that took place in Colchester last September—a year ago. One problem that emerged in that case was that no one knew what were the precise rules of engagement. The issue did not arise for several weeks; in preparing the case, the prosecution had not set out what were the rules of engagement.
	The defendants were of the view that they were operating at the time—which was after President Bush had declared victory and soft caps were being worn by the British military—on Northern Ireland rules. It subsequently emerged that the rules of engagement had not changed and that at the time, they were still operating on the rules of engagement for the invasion of Iraq, which were far more drastic in neutralising the enemy than anything that happened in Northern Ireland.
	There was no communication to the soldiers, who were simply on patrol in the Maysan province, as to what they could and could not do—at least, no direct indication to them. I think that they were operating on the basis that an officer had said to them, "Okay, boys, now it's Northern Ireland rules; we can all relax a bit". That is about as far as it got. There was no crystal clear direction as to what they should do.
	Of course, the rules of engagement change. The FRAGOS—a phrase that will be familiar to those with a military background—seem to bring in various additional rules for operations as they progress. The rules of engagement may shift from time to time, but it is very important, if there is a change, that the people charged with the responsibility—the people who will end up at a court marshal—are aware of the significance of the rules and of the parameters within which they can act. I fully support the amendment.

Lord Lyell of Markyate: I, too, rise to support what my noble friend Lord Kingsland said, including the fact that this is to some extent a probing amendment. This is a very difficult subject. I remember being involved in the development of the rules of engagement when we were involved in Yugoslavia. This included cards—I seem to remember that they were, perhaps appropriately, yellow in those days—and getting the exact wording right. The card is what is handed to the soldier, who is likely to find himself in the law court, but behind it lie much more complex rules of engagement, to which the noble Earl, Lord Attlee, rightly referred. It would greatly assist our future debates on this matter if the Minister would either put at least some of the rules of engagement into the Library or write to us with copies of them, for use with appropriate discretion if necessary. I hope that it is not necessary—I hope that he can put them into the Library—but if he cannot, surely we can at least be provided with them in sufficient detail so that we can all apply our minds to the very difficult questions that can arise.
	It is essential that each serviceman should be provided with the guidance and protection that he needs. It should be remembered that the rules of engagement on the card with which he is provided will almost inevitably require him to judge whether his life is in danger and possibly to justify that at some point. It may be necessary and right that he should do so. I can see difficulties in putting the requirements on to the statute book, but it is well worth trying to do so. At the heart of the Bill is a system of military law that applies to all the services and which provides them with a proper framework of law and a proper court framework, which is largely the court-marshal framework, but which does not divorce them from their position as civilians—or at least as citizens—and that is part of the normal framework of the law so far as possible. The rules of engagement are a very important part of this, and we have a good deal more exploring to do, but I commend the amendment as a good start.

Lord Drayson: The noble Lord, Lord Campbell, raises an important point when describing the similarity between orders and the detailed nature of rules of engagement. He has also emphasised the point to which I alluded at the beginning of my response, which is the importance of the intent to do wrong. The noble Lord is right. We have heard on the Floor of this House as we have debated this issue in the past how in combat this may be a split-second decision made in very difficult circumstances. I remember vividly the description that the noble Viscount made to me earlier this year of a soldier going into a dark room, seeing a person and having to make a split-second decision that could cost him his life if he got it wrong. We understand those concerns. None the less, the issue is whether the person acted in combat on his view of the situation as I have described it and what his intent was in that situation. It is important to recognise that if he acts on his view, even if he gets it wrong, he has not committed a crime. Therefore, trying to use the rules of engagement framework, which is designed to enable our commanders to carry out an operation that may be extremely complex, as a document for protection under the rule of law—and so to combine those two things—would act in a way that was prejudicial to operational effectiveness.
	It is important for us also to bear in mind the fact that in some cases we need to leave important decisions relating to these matters to the operational commanders in the field. I know that the commanders welcome this responsibility. The concern has been raised about whether our soldiers are clear about the rules of engagement. This is a matter that both personally and as a Minister I have asked soldiers about when visiting them on operations, and I believe that they are clear. One might say, "The soldiers would say that to a Minister", but when one reads some of the reports of operational commanders coming back from theatre and their responses to whether they are clear about the rules of engagement, I believe that they are clear and I do not believe that we have a fundamental difficulty in this area.
	If the rules of engagement were to have the force of law and provide an absolute defence, as is being suggested, they would have to take away what I have described as vital operational discretion. They would have to attempt to set out exactly how each commander and each soldier should respond to every situation. As the noble Earl said, losing that confidentiality would be prejudicial. It is also true to say that we would lose the ability to respond to the situation on the ground. The noble Lord, Lord Ramsbotham, made the point about the fluidity of situations and how they may change. That is absolutely true. We have heard also the noble and gallant Lord, Lord Inge, talk of the frequency with which the Defence Council meets. We must recognise that we need a process that enables the framework of the rules of engagement for a mission to be modified and adapted by commanders as they see fit in the terms as they find them when on operations. If we had to wait for revised rules of engagement so as to make them compliant from a legal point of view, that would of course delay the process.
	We must also recognise that the rules of engagement for a particular operation are supplemented by detailed guidance and are adapted for commanders as well as for soldiers, sailors and airmen according to their missions. We heard the noble Earl, Lord Attlee, describe the cards and we discussed them at the briefing meeting; they used to be yellow, as the noble Earl pointed out. We believe that commanders at every level well understand their responsibilities to ensure that those under their command receive appropriate guidance and training and understand the nature of their task. Commanders also understand when the cards, briefings, training and orders are the best way to achieve that. The cards are issued as guidance. A good example of this was the aide-memoire issued to personnel deployed to Iraq during the Operation TELIC war fighting phase, which concerned duties towards prisoners of war and civilians under the law of armed conflict. I do not believe that rules of engagement drafted as the amendment proposes would make the individual any safer from prosecution. Rules of engagement can never flout the law. If compliance with them gave an absolute defence, the police, prosecutors and courts would have to analyse and dissect them to establish whether the individual service man or woman was guilty of an offence.
	In conclusion, I genuinely believe that this amendment would be disastrous. It would tie the hands of our commanders and all our service people; it would not simplify the law and it would not simplify the sort of decisions that servicemen will always have to take in the difficult circumstances and situations that I have described. It would introduce legal encirclement where it does not exist now.

Lord Drayson: I will deal with Amendment No. 64 first and then go on to Amendments Nos. 65 to 68.
	Amendment No. 64 seeks to provide that every person shall readily be able to determine who his commanding officer is. I understand that, through this amendment and others he has tabled about the terms "officer" and "superior officer", the noble Earl seeks clarity for soldiers, sailors and airmen. I am pleased that we have a common aim in that regard.
	As the noble Earl has said, I have written to him on these issues. I hope that he is reassured that through the regulations we will be able to achieve the clarity he seeks. I am willing to meet with him to discuss that further. I recognise that in the Bill overall, there is a significant reliance on trust in certain aspects. The regulations that will be brought forward will meet some of the issues which noble Lords have raised in a number of briefings. I will be happy to meet the noble Earl to go through that further.
	The combined effect of Amendments Nos. 65 to 67 would be to reduce the highest rank of officers that may be dealt with summarily from commander and equivalents to lieutenant and equivalents, to remove the power to deal summarily with warrant officers, and to require the commanding officer to be at least two ranks above the accused before he may hear a charge summarily. Perhaps I may explain the position under the current service discipline Acts.
	For the Army and the RAF, warrant officers and officers up to the rank of lieutenant-colonel or wing commander are dealt with summarily by an appropriate superior authority—that is, a senior officer of one-star or two-star rank who has powers of punishment over those individuals. In the Royal Navy, warrant officers and officers up to the rank of commander are dealt with by the commanding officer if he is at least two ranks above the rank of the accused and otherwise by the appropriate superior authority.
	Under the Bill, we have removed the concept of an appropriate superior authority and provide instead for these individuals to be dealt with by the commanding officer. But it will, as now, be possible to appoint a commanding officer to an individual for a specific purpose in regulations. So the Bill retains the current power to hear charges summarily against all ranks up to those of commander and equivalents, but the regulations will ensure that they are heard by an officer of an appropriately senior level. Specifically, the commanding officer must be two ranks above the accused. I trust the noble Earl is reassured on those two aspects.
	Finally, Amendment No. 68 would make reservists subject to service law when on a service base, ship or aircraft. Clauses 360 and 361 set out the circumstances in which reservists are subject to service law. These provide that they will be subject to service law when they are carrying out any activities as reservists.
	To extend this in the way in which the noble Lord's amendment seeks would be to make it unnecessarily wide. The services have no desire to extend the times when reservists are subject to service law in this way, and believe that it is important to link the times when a reservist is subject to service law to the activities in which he is engaged, rather than where he is located.
	Additionally, the Bill already provides that a person is "subject to service discipline" while he is in one of Her Majesty's ships afloat or one of Her Majesty's aircraft in flight. This applies to a reservist as well as anyone else who is not subject to service law. On the basis of this explanation, I ask the noble Earl to withdraw his amendments to this clause.

Lord Drayson: Amendment No. 76 is unnecessary. Clause 91 allows a commanding officer to authorise any member of the Armed Forces who is not a service policeman to exercise similar powers to enter and search premises to make an arrest as those afforded to the service police under Clause 90. This reflects the fact that service police are not always readily available.
	I will deal now with Amendments Nos. 78 and 82, which relate to the regime for custody. These provisions are very little changed from the current regime under the SDAs, which were introduced in the Armed Forces Discipline Act 2000, which themselves were based upon provisions in the Bail Act 1976 and the Police and Criminal Evidence Act 1984. With regard to Amendment No. 82, for example, the provision regarding timings being approximate in the Bill is identical to the PACE provision and allows the arrangements to work in practice.
	Amendment No. 78 could have the effect of extending the period which the commanding officer alone can authorise an accused to be kept in custody without charge, without making an application to a judge advocate. In the interests of the accused, this should not be a power that applies in all cases. We have, however, already provided, in Clause 102, for a commanding officer to be able to do this in extremis where it is not practicable to get before a judge advocate within the 48-hour period, but this is subject to tight control. This is already the position under the current service discipline Acts and we believe that it works well in practice.
	I hope that with these reassurances the noble Lord feels able not to press his amendments.
	Amendments Nos. 83, 85 and 86 together relate to age. They amendments would raise the relevant age limit in each clause from 17 to 18. Clause 106 sets out the conditions which a judge advocate must have regard to when he is considering whether to authorise post-charge custody. One condition is that the judge advocate is satisfied that the accused should be kept in service custody for his own protection or, if he is aged under 17, for his own welfare or in his own interests.
	Clause 107 sets out what other factors a judge advocate should consider when releasing an accused person from custody. Subsection (3) permits the judge advocate to require the accused to comply with certain requirements. These are generally the same as those which apply in civilian proceedings. Among them, at Subsection 3(d) is that a person who is under 17 may be subjected to certain requirements by a judge advocate on or after release if the judge advocate considers it necessary for the welfare of the accused or in his interests.
	Clause 110 deals with the situations, post-charge, or post-conviction, when a commanding officer may be permitted to order the arrest of a person who is not in service custody. Subsection (3) permits a commanding officer to order the taking of a person into service custody when certain conditions exist. These conditions are generally the same as those which apply in relation to civilian proceedings, as the noble Lord has guessed. One condition is that a person who is under 17 may be taken into custody for his own welfare or in his own interests.
	We do not think that in any of these three clauses there is a case for the services to have a higher age limit to that which applies in civilian proceedings. The effect in each case would be to make an accused more susceptible to custody than would be the case if they were to appear before a civilian court, notwithstanding the wide range of appropriate steps short of custody which are also available to the chain of command. For these reasons I ask noble Lords not to press their amendments.
	I will finally deal with the second aspect of these amendments, which is in relation to Clause 106 only—Amendment No. 84. This clause sets out the conditions a judge advocate must consider when determining whether to authorise keeping an accused in custody under Clause 105. Conditions A to D are generally the same as those which apply in relation to civilian proceedings. Among them, condition B is that a person who is under 17 may be kept in service custody for his own welfare or in his own interests.
	The purpose of Amendment No. 84 appears to be clarification. Although noble Lords are of course right to point out that condition D applies only in the circumstances set out in Clause 109, that is already the effect of Clauses 106 to 109 when read together. The amendment would not change the substantive position and the clause as drafted is, I believe, sufficiently clear. I would therefore ask that these amendments be withdrawn.

Lord Garden: I am grateful to the Minister for going through all those amendments. I apologise for not having spoken to Amendment No. 84, but he described the rationale for it—to clarify the situation—probably better than I could have done. We were trying to be helpful with the two amendments that act as clarification without changing the meaning. If the Government want to stay with their own language, however, we will not fight that terribly hard.
	On Amendment No. 78, I shall look at the Minister's remarks in Hansard, because I could not work out what the maximum time was if special circumstances pertained. If he tells me that it is sufficiently constrained—I am sure that it is—we can look and see how it is constrained and decide how we come back on that.

Lord Garden: Having given general support to the amendments, these Benches are pleased to see that the Government amendment covers what is required. However, it would be worthwhile considering the points that the noble Lord, Lord Ramsbotham, has made on ensuring that there is regularity in this matter. We certainly support Amendment No. 90A.

Lord Thomas of Gresford: Perhaps I may raise with the noble and learned Lord the Attorney-General the much-related point regarding the additional jurisdiction of the court martial to hear and determine cases involving murder, manslaughter, rape and treason that are committed in this country. As the noble and learned Lord will know, and as we were told in our earlier debates, since the 16th and 17th centuries, those offences could be heard only in the civil courts. This Bill provides for a dramatic extension of jurisdiction to enable courts martial to deal with such cases, even if the offences are committed in this country.
	Who will decide whether the trial is civil or for a court martial? If a serious offence happens overseas, there are arrangements between the local jurisdiction and British forces as to which should have precedence. In this country, where there is duel jurisdiction for matters other than the serious offences to which I referred, the Queen's Regulations set out various ways in which the choice can be made. It is usually made by the chief officer of police for the district within which the offence was committed and that is a matter of liaison between him the commanding officer.
	What happens now? Will the Attorney-General himself determine whether there should be a trial by court martial for a murder committed in this country, or should it be decided by the Crown Court, or will someone else decide this issue? Will it be the Director of Service Prosecutions or the Director of Public Prosecutions? The mechanism by which that choice will be made is not spelt out in the Bill and that question is very much related to the matter raised by the noble Lord, Lord Campbell of Alloway. I hope that he forgives me for speaking to his amendment in this way.

Lord Goldsmith: I do like this place.
	I think that I have been quite clear with the noble Lord, Lord Kingsland, on what I believe is the position. I shall say one more thing. The decision on whether prosecutions take place is not a matter for the Government. Ultimately it is a decision for the Attorney-General as the senior civilian authority. If the noble Lord, Lord Kingsland, of whose forensics I am very well aware, has somehow trapped my noble friend, that will not prevent the responsibilities that I have constitutionally being exercised. I am going to move on.
	Why do I not accept the route that the noble Lord, Lord Campbell, has proposed? It is for the reasons given by the noble and learned Lord, Lord Mayhew, and the first reason but not the second reason given by the noble Lord, Lord Kingsland. The background is that there are many hundreds of cases each year in which the UK military and civilian police prosecuting authorities decide whether offences committed by UK servicemen in this country should be tried in military or civilian courts. In those cases, as the noble Lord, Lord Thomas, said, they decide without any apparent difficulty guidance set out in Queen's regulations. The noble Lord, Lord Thomas, asked whose decision was final. I believe that that was clearly stated by my noble friend Lord Drayson when he correctly stated on Amendment No. 59A that ultimately the civilian authorities have the final say. If there is a disagreement between the prosecuting authorities, ultimately that would mean as the House of Lords has said a decision by the Attorney-General as the senior civilian authority. So, ultimately the matter is for the Attorney-General. So, too, in overseas cases where the United Kingdom civilian courts and the courts martial have concurrent jurisdiction. That is—I disagree with the noble Lord, Lord Kingsland, as he knows—under the constitutional responsibility for the enforcement of the law recognised in the case of Bastow by the House of Lords and as part of my superintendence as a prosecuting authority. It is not in the Bill; it is part of our constitutional arrangements.
	Judges have a crucial role in safeguarding against any abuse of the court process. You can make an application for an abuse to stop a case on the grounds of abuse. Equally you can apply to a court which is trying a case to say that there is no evidence to support it and no case to answer. Both of those applications were made to Mrs Justice Hallett. The first problem in the amendment of the noble Lord, Lord Campbell, is that it asks the judge to do what I would respectfully say is making a prosecuting decision. He is asked to consider two questions: is there a realistic prospect of conviction; and is it in the public interest to go to a particular place? That is exactly the decision that the prosecutor has to make. Not only does that undermine the constitutional position of the Attorney-General, as the noble and learned Lord, Lord Mayhew, said, it also undermines the constitutional position of the judges. Some of the cases are set out in a letter sent by the noble Lord, Lord Drayson, to the noble Lord, Lord Campbell.
	I shall read only one reference by Lord Dilhorne, a very distinguished judge and former Law Officer and Lord Chancellor, who said:
	"A judge must keep out of the arena. He should not have or appear to have any responsibility for the institution of a prosecution. The functions of prosecutors and of judges must not be blurred. If a judge has power to decline to hear a case because he does not think it should be brought, then it soon may be thought that the cases he allows to proceed are cases brought with his consent or approval".
	What would happen if a serviceman was being prosecuted in the civilian court because a judge said it was right to do so? Is there not a risk that the jury will think, "Well the judge thinks this is a good case". Would not the serviceman in those circumstances think that he was at risk of not getting a fair trial? So I have that objection as well.
	I come to the one point where I recognise the point made by the noble Lord, Lord Campbell, and others. Looking at the future, does it make sense that in circumstances where a serviceman may be prosecuted in a civilian court and might expect if he is to be prosecuted that it will only be at court martial, he should have some notice of that and an opportunity to make some representations? I see the force of that. I would not want to take it too far for several reasons. I would not want to see great delay, formality or satellite litigation because delay of that sort only delays it from the point of view of the serviceman. Sometimes one would not know who all the potential servicemen are. It happens sometimes that there is a case that once it starts to be investigated by the civilian or military authorities, other soldiers or servicemen come into the picture. I would not want to stop and start, but I am happy to assure the House that if cases in the future are brought to me in the circumstances referred to in the noble Lord's amendment—active service operational circumstances overseas and the possibility of a civilian proceeding—I will seek to ensure that the views of the serviceman or servicemen who are known at that stage as defendants are made known to me. They will have the opportunity of making written representations as to the venue. I do not expect it to take long. I do not expect it to result in complicated legal proceedings. But I hope that the noble Lord will see that by that assurance I have given to this House, it meets the final part of what the noble Lord has been seeking to obtain.
	The noble Lord tabled this probing amendment to obtain assurances for the future. I hope that he will take the view that he has succeeded substantially, though not perhaps by the route that he had in mind, and that he will be able to withdraw the amendment happily.

Lord Goldsmith: I was not dealing with that with that case at all and I am not giving any assurances about that. We have well worked out arrangements where events take place in this country through Queen's regulations and through arrangements between police and military authorities. I was dealing with the case raised by the noble Lord, Lord Campbell, about a person who is on active service in operational circumstances overseas where there is concurrent jurisdiction. In those circumstances, I understand that he says that he would expect to be dealt with in a military proceeding in a military procedure. I am saying that if a question arises that it should be civilian, within the limits I have identified, I will seek to ensure that he has an opportunity to make written representations as to venue before a decision is made to take it to the civilian process.

Lord Campbell of Alloway: I thank the noble and learned Lord the Attorney-General for his assurance. He is right—it gives me the essence of what I am asking. I hope it alleviates the concern of the noble Lords. I dissociate myself from the extension of the undertaking sought by the noble Lord, Lord Thomas of Gresford. That is not what I am seeking.
	The whole object of this having been achieved with a reasonable sense of amity, I certainly shall not come back to retable this, and I shall not be having any further discussions with my noble friend Lord Kingsland about it. I hope, however, to have some discussions with the noble and learned Lord the Attorney-General and the noble Lord, Lord Drayson, if there is a way that one can help. I am very grateful to them both. I beg leave to withdraw the amendment.

Baroness Hanham: rose to ask Her Majesty's Government what is now their policy on home information packs.
	My Lords, my original intention was to have the home information pack regulations brought to the House to pray against them. Owing to the difficulties in finding a suitable date for a debate before the Recess, it was postponed until today. However, noble Lords will remember that shortly before the House rose for the Summer Recess—on 18 July, to be exact—the new Secretary of State for Communities and Local Government suddenly announced that the mandatory provision of the main component of home information packs, the home condition report, was to be abandoned in favour of the report being produced on a voluntary basis, if the seller wished. Since that seemed to raise the question of the viability of the regulations themselves, rather than praying against the remaining aspects I decided to turn the prayer into a Question, which I ask today: what is the Government's policy now on home information packs?
	I will not weary your Lordships with a rehearsal of all the concerns raised in this House and the other place by me and my colleagues about the validity of the rationale for HIPs. The rationale was that, by arming buyers from the outset with information on properties in which they were interested, the packs would prevent sales from falling through and save millions of pounds from being wasted. Concerns were raised about the packs' shelf life. There were also concerns about the mandatory requirement for a home condition report to be included in a mandatory pack, which had to be available before a seller was even able to put their house on the market. There were great doubts, still not resolved, as to whether a home condition report would satisfy the requirements of the mortgage companies in terms of a survey adequate for their purposes, and as to whether the home condition report surveys would be of sufficient detail to satisfy the requirements of a buyer. There was a concern that the whole thing would be a complete waste of time in view of the imminent arrival of e-conveyancing.
	I will briefly draw attention to the aspects that have brought this pack of cards tumbling down, both of which were foreseen and debated ad nauseam but comprehensively rejected by the Government as an unnecessary intrusion into their unfettered belief in the viability of the packs: the number of home inspectors who were in training and would have been ready for implementation day, and the preparedness of the home-sellers industry to undertake this wholesale change. Time after time, the Government were questioned—and I am delighted to see the noble Lord, Lord Rooker, in his place, because we debated this together on numerous occasions—on the number of inspectors in training. The answers were always reassuring: there would be more than sufficient to undertake the work when D-day came. That fig leaf was finally blown aside in the Secretary of State's admission in July that there were not going to be anything like enough inspectors trained or in training to entertain a compulsory introduction of home condition reports for all sales. In fact, we understand that of the 7,000 required, fewer than 250 had been trained, at a cost for each one of about £7,000. That made implementation impossible.
	Another aspect was that the Government had agreed, under pressure during the passage of the legislation, to undertake a pilot—or, as it was termed, a "dry run"—of the packs prior to their implementation. That has barely begun. We understand that six area trials are due to be undertaken shortly, supported by £4 million of government funding and under the aegis of the Association of Home Information Pack Providers. The test will include the trialling of packs funded in different ways: fully funded, paid for by the Government; the home condition report element funded by the purchaser and the remainder by the Government; and the Government picking up the bill if the sale falls through and the consumer pays the full cost. It does not take the genius of Einstein to see that the only test will be of the fully funded packs.
	How are these trials to be monitored and reported? Prior to these "dry runs", the Government sought to obtain a benchmark of the current selling processes for comparative purposes by seeking information from estate agents, solicitors, buyers and sellers by means of a baseline study that was to take place between 15 May and 9 June 2006. Was that baseline study completed? How many responses were received from the three-week survey? What use was the study going to be put to? In her statement on 18 July, the Secretary of State also referred to the fact that over 14,000 home information packs with searches had been successfully tested, but that only 250 of these had been produced with "some sort of survey". Those 250 were to be analysed over the summer. What is the result of that analysis?
	While there has been a complete volte-face on the home conditions report, the requirement for an enemy—I apologise; maybe it is indeed an enemy, but I meant "energy"—an energy performance certificate has suddenly become the Holy Grail of the home packs. These certificates are to be mandatory and will contain information and gradings on the efficiency of heating and hot water systems and the insulation of properties. However, they will also require technically trained inspectors. How many of these are in training, and will they require different qualifications and competencies from those of the home inspectors that are currently in such short supply? How does the Minister believe—if she does at all—that it will be possible for energy performance certificates to be introduced by June 2007 if specially trained inspectors are required for them but are not even available for home condition reports?
	Does the Minister agree that the only reason why the energy efficiency audit has become so important is to implement the EU directive on energy savings in homes, and that that is already being done perfectly satisfactorily in Northern Ireland, where it is a stand-alone requirement on sale of property? Does she further agree that the European directive talks about a certificate having to be made available on the sale or letting of a property? If so, why are the Government insisting that that is a condition of first marketing a property? The reservations about and opposition to home information packs have been demonstrated to be well judged. Our view, which is supported by many professionals in the industry, is that the Government should do everyone a favour and jettison this whole policy.
	I am sure that the Minister will agree that moving home is one of the most stressful things that anyone can do. These provisions, even if introduced in their mauled form, threaten to make that worse, not better. Rather than protecting the public, they are set to undermine the stability and health of the housing market. Having reached the decision to delay, the Government would be well advised to abandon this whole project. It is plain as a pikestaff that these regulations cannot be allowed to stand. They have been blown apart as a result of the Secretary of State's actions. Will the Minister say when and if they are to be revised and, if they are, can she clearly deal with the question of what the Government's policies are now?

Lord Addington: My Lords, I came to this subject via the indirect route of a member of my family undertaking the training to implement these packs in time to be told that the scheme was not happening. I regarded that as annoying to them—that is an understatement—and as fundamentally unfair to anybody who had undertaken the training. The Government brought in the scheme and then the Government took it away. The cost involved is considerable—more than £8,000—and the course controls your life for a year. I have figures that show that it takes 15 to 20 hours per week of home learning over a year. Vast amounts of effort are required to do that.
	Suddenly, something that you had been working towards that you thought would bring you career advancement was taken away at the drop of hat—at least, that is what it felt like. Then, when the noble Baroness responded to a topical question—it was the last topical question we had, so perhaps her reply will be more entrenched today—those people found out that the energy component will remain. The figures that I have on that course is that it costs £3,000—as opposed to £8,000—the maximum total home learning is about 40 hours and it can be done in about three months. I was given those figures by one of the major suppliers. So 15-plus times more work and effort over a year—when your applications for jobs and everything else in your life are being controlled by that intensive training—was taken away.
	I did not get involved in whether the packs were a good idea in the first place. Initially, they seemed attractive to me, and they still do as a concept. As the implementation was this badly done, I suggest that the Government have a duty at least to compensate those people who have done that work. The junior level of training required for the secondary qualification for which you are apparently covered does not compensate for the amount of effort you have put in. A greater number of people can enter the market to get the training quickly and will thus be competing with you. There is no compensation for the amount of time that you have put in.
	No matter what their reasons or how logical they were, the Government must stand up and say, "We got it wrong, we will give you a form of compensation". Initially, I thought that some repayment of the costs would be enough, but the longer this goes on, the more it will rankle. Every time the Government insist on some training to fulfil a government post, I would be looking over my shoulder for a wee bit, especially in this field. Surely there is a duty—indeed, a moral responsibility—on the Government to give some form of compensation. I look forward to the Minister's reply, but the fact that you have a junior qualification from your much more expensive training does not cut the mustard. I look forward to the Government taking some action to give compensation.

Lord Jenkin of Roding: My Lords, when I saw my noble friend's Unstarred Question on the Order Paper, I reflected that this year I have undertaken three transactions: I surrendered a tenancy in Pimlico, I bought a small terraced house in Vauxhall and I sold an old farmhouse in Essex. I therefore examined those transactions to see whether, if these HIP proposals had been in force, there was any prospect that they could have done anything to—I quote from the original news release from the ODPM in 2003—
	"ensure the home buying and selling process becomes more certain, transparent and consumer friendly, whilst reducing stress and the number of failed transactions".
	I entirely agree with what my noble friend said about the stress of moving house; my wife and I are getting on a bit in years and that makes it worse. I have studied the case. I attended a briefing on Monday and have read the 80 pages of the regulations—80 pages, what on earth are people supposed to make of that? I have come to the conclusion that I cannot begin to see how, if the HIP process had been in force for any of the three transactions that I undertook, it could have done anything other than increase the costs and multiply the bureaucracy.
	When I sold my house, my solicitors had no difficulty in getting hold of all the information that they needed, including information about title, so that they could draw up a contract and the conveyance. That included sufficient information to register the land for the first time, as it had not been registered before. When the first purchaser whose offer I had accepted failed to make any progress and I had to put the house on the market again, I asked my solicitor how much that failed transaction would increase his costs. He said that, as he had all the documents and all that he had to do was make other copies and send them off, it would probably cost about another £20. Is that what this massive bureaucracy is supposed to save? I cannot believe that the HIP process—particularly without the house condition survey, which has now been abandoned, as my noble friend said—could conceivably have helped me in any way at all. Apart from one matter—the energy performance certificates, to which I shall return in a moment—I have identified nothing in this process that would have made any of the three transactions anything other than more expensive. I cannot believe that that is what the Government would be happy with.
	The ultimate purchasers quite properly insisted on a fully qualified surveyor to survey my 150 year-old house. It is inconceivable that he could have been satisfied by the sort of house condition survey that the Government originally envisaged. The longest delay in the purchase of my house in Vauxhall was getting information out of the freeholder's agents, and there is nothing in the HIP process that could conceivably have speeded that up. That was the only delay we had.
	Where does that leave us? The energy performance certificate is the only part that is worth having, and I could be persuaded that that would be worth while. I believe that the Government ought to withdraw the rest, start again with their energy performance certificates, and see where they get to.

Viscount Eccles: My Lords, last June the Home Information Pack Regulations were reviewed by the Merits Committee, of which I am a member. What has been said already arises out of the implementation of Section 5 of the Housing Act 2004. I do not think that a case was made then, nor has one been made since, for the abandonment of self-regulation and the creation of a new class of certified inspectors.
	Such a bureaucratic intervention will not improve the working of the housing market. There are no reported distortions of substance to the housing market which call for government intervention and control. The Explanatory Memorandum and the regulatory impact assessment, which accompany the regulations, do not claim that there are. The proposed public sector regime does not follow from the consultation process and the responses to them. The driver in my view has been political philosophy, a perceived need to intervene and control, and not from an accurate assessment of the best interests of buyers and sellers in a market which in general works well.
	I will focus now on the energy performance certificates. These are the remaining mandatory plank on which the Government rely after correctly ditching home condition reports as mandatory. I cite the Explanatory Memorandum which came with the Home Information Pack Regulations. It states:
	"The Regulations refer to energy performance certificates as the certificate required by Council Directive 2002/91/EEC (Energy Performance of Buildings Directive) whose form and content complies with any enactment which implements that Directive made in accordance with article 7. Article 7 is expected to be implemented by January 2009. These Regulations do not implement the Directive, and given that they do not do so, there is no requirement to provide a Transposition Note".
	So we are left wondering what is the future of the energy performance certificate. At first reading of the directive, it does not look especially onerous or unduly technical. Its major impact will be not on family houses of different types but on larger buildings, but we have yet to see how it will be transposed and how expert the required experts will need to be. In the mean time, as the Joint Committee asks in its 34th report of July, given the 2009 implementation date, why is there not an "express temporary exception" from the obligation to include energy performance certificates or predicted ones in home information packs? Given that uncertainty, no one in their right mind would rely for regular employment on becoming a home inspector. The fees earned may turn out to be nugatory.
	It is also high time for a second full round of consultation. It is approaching eight years since the unfortunately titled document, The key to easier home buying and selling, was issued. Much has happened since then. Much is happening now. It would be wrong for the Government to cling to proposals which do not even follow from the advice that they received. The public deserve better.

Lord Hunt of Wirral: My Lords, I declare my interest as a partner in Beachcroft LLP and the other entries on the Register. I warmly congratulate my noble friend on securing the debate and on her lucid and penetrating speech. To summarise what has been said in the debate, the Government have a disastrous policy that is now in a terrible mess. I therefore want to give the Minister as long as possible to explain. We do not have to finish until eight minutes to nine, so she will have a long time to do so, and we are avid to listen.
	It is never endearing to say, "I told you so"—I agree with the noble Baroness, Lady Hamwee, that there is little profit in saying that—but many of us on this side of the House, as we have heard, warned Ministers from the outset that their policy on home information packs was ill-thought-out, intrusive, and expensive nonsense. Much more important is the fact that many of us warned that the policy was likely to unravel, and I echo what my noble friend said about the whole pack of cards coming tumbling down. The fundamental point is surely that moving home is already one of the most stressful, debilitating and, above all, costly undertakings. It was generally felt that HIPs could serve only to add to the general nuisance and woe. My noble friends Lady Hanham and Lord Jenkin of Roding are right to talk about that stress. We must bear that in mind. My noble friend Lord Selsdon, too, is quite right that 80 per cent of the assets—80 per cent of the debt—is in a person's home. We must therefore handle this policy very carefully.
	In their original form, HIPs would have cost as much as a survey. Indeed, in many ways they were going to replicate a buyer's survey but would in no way obviate the need for one. Numerous headlines in July said that the Government had seen sense and had backtracked on all this nonsense, but the truth is not quite so simple or so gratifying. The statement given on 30 July informs us that the only aspect of the Government's policy that has changed will now be an authorised rather than a mandatory aspect ofthe HIP during the dry run. I recall exchanges with the noble Lord, Lord Rooker, about the dry run and the trials. The ominous note in the statement is an implied threat that mandatory HCRs will remain on the table if the industry fails to make a success of its roll-out.
	HCRs are supposedly so attractive that they will take flight majestically entirely voluntarily, but just in case they do not, the market must now operate under the shadow of the Government's power to impose them as and when Ministers dictate. So the leopard's spots have not changed that much after all, although I hope that the Minister will clarify all this for us. We have already heard from my noble friend Lord Eccles that the Joint Committee found some defective drafting; no doubt the Minister will explain all that and speak in her defence. We have also heard that the EPCs are a very good aspect, and I agree with my noble friend Lord Jenkin that there is a good case for them; my noble friend Lord Eccles said the same.
	There are so many questions; the noble Earl, my good friend Lord Caithness, posed a whole set of them. I would like the Minister to respond to the point about compensation made by the noble Lord, Lord Addington, who, with the noble Earl, has instanced the number of people who took the training and have spent a great deal of money, only for the Government to move the goalposts. We need as quickly as possible an explanation of exactly where the Government are at the moment. That, of course, is my noble friend's question.

Baroness Andrews: My Lords, the noble Baroness, Lady Hanham, has done the House a service by converting her Question into a debate. I share noble Lords' frustration that it is a short debate, and I shall try to answer as many questions as possible. I will certainly write to noble Lords if I cannot answer all of them in the time available.
	It has been a very thoughtful debate, and I know that I face many veterans of this policy on the opposition Benches. I shall concentrate on where we go now in order to answer the noble Baroness's question, but I must say a little about where we have come from. I thank my noble friend Lord Graham for his support. I had another supporter, but he became sick. It is a pleasure to share the Bench with my noble friend Lord Rooker.
	I start by making it clear that we are fully committed to making home information packs work in the interests of consumers and the industry as a whole. We have agreed on two things tonight: there is nothing more stressful than buying a home; and the home is our greatest, most valuable and most emotive asset. We are right to respect people's passionate feelings about that, so the need to make the process of buying and selling homes more predictable, less stressful and less wasteful is as urgent and as inescapable as ever. I was delighted to hear the noble Earl, Lord Caithness, say that we should think about the future, because to accept the status quo is an indefensible position. We still have the slowest system in Europe, slower than it was in 1998, and it is horrendously complicated. I very much respect the positive experience that the noble Lord, Lord Jenkin, had with his estate agent, but not all such experiences are so positive. I will return to the point . I do not think that either party opposite would want to put themselves on the opposite side to the majority of consumers who find themselves largely dissatisfied with a process that is so unpredictable and wasteful of emotional energy.
	The noble Lord, Lord Selsdon, made a very good case for home information packs. It was a very thoughtful and helpful speech in many respects. Noble Lords have asked about the point of having a home information pack without including the home condition report. On the evidence that we have collected, and the evidence from places such as Denmark and New South Wales, we still rightly believe that a single legal document up-front that brings together vital information—sometimes elusive information such as leaseholds that may be scattered in solicitors' officers or banks or buried in filing cabinets from where it has to be dug out—can make the system simpler and more transparent, particularly for the first-time buyer. I do not want to introduce a personal note into the debate but I am currently in the process of collecting such documentation. I think that this system can remove obstacles in terms of speed and complexity in what is a very uncertain process.
	There are costs in the system but they will be transferred from the buyer to the seller, and most sellers are also buyers. What a boon it is for first-time buyers to be able to look at a house and to know that they will be given the information they need up-front by the seller. If they do not buy one house they can find another one and they will not have to pay for a second set of papers.
	On balance, noble Lords have welcomed the energy performance certificate, which is the other mandatory aspect of the HIP. I am glad about that. However, I say to noble Lords who questioned why the EPC was brought forward now—as though it were intended to mask the mandatory nature of the packs—that we have to tackle climate change in this country. Our homes emit huge amounts of carbon. We have no time to waste. We are bringing the EPC forward now because it will contribute to achieving a target of a 20 per cent reduction in carbon emissions by 2010. It will do so by informing people how to save on energy costs, how to improve insulation and how to reduce their bills. This is a win-win situation. We did not have to wait until 2009 and we chose not to because the situation is urgent. It is something that we could do something about. The regulations that we will introduce, to which I shall refer later, will be amended to make stand-alone energy performance certificates a mandatory component of home information packs. Finally, I confirm that home information packs will come into effect, as we have already announced, in June 2007. That is one element of the answer to the Question raised by the noble Baroness.
	I turn now to the burden of the debate—which is why we made the change and the implications for the industry and people in training. The change announced in July does not in any way imply a loss of faith in the value of home condition reports—far from it. Why should it be easier to get an MoT on a car than it is to get a comprehensive account of the state of one's prospective home, especially since only 30 per cent of people get a mid-range survey? Our position regarding June was nothing to do with the value that we place on the home condition report but was to do with our obligation to the consumer to have the best possible product that would bring the most effective benefits. Three elements in combination affected our decision. They have been touched on but I should like to enlarge on them a little.
	The first element was the timing, which was dictated by the fact that when we did the dry run collecting evidence, no matter how expansive the reconnaissance, the real-world impact of home condition reports proved to be very difficult. There were 15,000 voluntary packs in operation, only 250 of which had a home condition element. None of them had a home condition report and we could not test or trial them because the home inspectors were not in place. It became clear that we had to test them in a real world environment. At the same time, we thought that a mandatory test—and we were well advised on this—would be deeply unpopular and flawed not least because people who moved from one area to another would end up by paying twice. In June, we therefore took the decision that we had to have proper, independently evaluated trials which would be conducted by home inspectors.
	The second element, which was made clear to us, was that despite its best efforts, the lending industry did not have its automated valuation systems in place to the extent that the information generated by the HCR could be used to make mortgage evaluations a simpler desktop process—which is where the lending industry wants to go in many respects.
	Thirdly, I come to the point about home inspectors. We were confident about the numbers and in the summer we gave the figure of 7,500. But as the training went through, it became clear from the pace of qualification that we could not predict with certainty that we would have that number of qualified home inspectors in place by next June. People were coming into the scheme either from the surveying profession or, as was the case of the brother of the noble Lord, Lord Addington, from scratch. They were progressing at their own pace and were therefore qualifying at different rates. Taking all those concerns together, to have pushed ahead with all aspects of the home information packs as well as home condition reports in one big bang on a single day next June would have been irresponsible. We could not take that risk on behalf of the consumer.
	I shall turn briefly to where we are now. We understand the impact on the industry, although I was interested to note that membership of the Association of Home Information Providers has seen a net gain, while the number of early adopters has increased. But the most important element concerns the serious personal consequences this has had for individuals, and we do not minimise that. The Secretary of State was quick to apologise, and that apology was very sincerely meant. We do not believe that it is appropriate to offer compensation for reasons I will explain. The trials and testing involved in the voluntary roll-out will absorb people in training. Some 470 home inspectors have completed their training and 177 have been issued with their diploma. The first of those qualified inspectors will be involved in the trials we are about to start and in the subsequent rollout, and as they roll out more will be needed. They will also certainly be needed in order to meet the demand for energy performance certificates because at the moment they are the only people qualified to issue them. However, by 2009 when the rental market will become involved by being required to prepare energy performance certificates, we will need a lot more inspectors. As we are talking about 1.8 million rental transactions, many more qualified people will be needed to award the certificate. Not only are we confident that we will have enough work for the inspectors in that respect, but we are also putting in place an assessor's qualification which will become available next February; it will match the national occupational standards for energy assessment.
	We are now investing in a very serious process of trials and testing. It involves only six areas, but they are very different and discrete, and so we think we can achieve a real result. The first of the recruitment evenings took place last night. Some 200 organisations have shown an interest in these preparations, and 75 are already involved in the dry run. Moreover, the private sector will be very firmly encouraged to take part. Government office staff and time have been committed to support the trials and regional publicity campaigns will be run. The trials will examine the take-up and use of both the HIP and the home condition report. Certificated home inspectors will be involved, as well as estate agents and so forth. We need to understand the impact and how useful the pack is not just on the process but also on the quality of the experience in order to maximise its benefits. Will we need to change some of the emphases? Will it need to be fine-tuned in some ways? How can we accelerate the benefits and maximise the impact of energy performance certificates? Money will be used for communication and advertising, and we will be offering incentives in the form of a limited number of free packs as well as packs in which the mandatory element will be provided to the seller free of charge, leaving them free to pay for the HCR, and packs provided on a no-sale, no-fee basis. This is a trial and it will be empirical.
	What is most important—and here I respond to the noble Earl, Lord Caithness—is that the trials will be evaluated by independent researchers who will monitor them in order to provide an objective understanding of what is happening. The results will feed back into the process and will be published in order to inform our decisions. So in essence our policy is to make a success of the rollout by evaluating the trials as comprehensively as possible. We will keep Members of this House as well informed as we can, along with lenders and all those who go along with us.
	In response to questions put by the noble Baroness, Lady Hamwee, we will look to see whether people genuinely feel better informed and more confident as a result of the pack. We expect these trials to confirm the benefits which have been found in Denmark, for example, where recent research found overwhelming support for the positive benefits. I can make that research available to noble Lords. We will also look at how long transactions take to complete without packs and whether they prevent transaction failures. While it is clear that they will not prevent such failures where people behave badly or circumstances change, we will be looking at how consumers can obtain greater protections through the packs. A very rigorous set of questions will be asked and the criteria will be qualitative rather than just quantitative because it is the qualitative element that will be extremely important.
	As for first-day marketing, we cannot prescribe in relation to that, as these are trials, but we hope to look at various factors including the impact of allowing marketing to commence once a home information pack has been commissioned. I will write further to noble Lords on that point.
	Finally, we have also made real progress in the certification process. The first certification scheme is now going through the approval process. It will be run by the Surveyors and Valuers Accreditation, which will manage the registration. It will ensure that each inspector has PI insurance. As regards registration, a preferred bidder has been found in Landmark Solutions and that will provide us with the database. The DTI has also announced the criteria that the Secretary of State will use to assess the suitability of applicants to run the redress scheme that will be available to anyone who has a complaint. This will offer protection against unscrupulous agents.
	The regulations will be amended and we will come forward with them early next year. The home condition report will be an authorised document—that is one change that will be made in the regulations—and the energy performance certificate will be a mandatory document. We will publish detailed information on the website. I am very sorry that the noble Baroness did not have a reply and I will look into it .

Moved accordingly, and, on Question, Motion agreed to.
	[The sitting was suspended from 8.51 to 8.52 pm.]

Lord Garden: This is by way of a probing amendment to see what surveys have been done by the Ministry of Defence to see how easy it is for a case for appeal to be put together by a defendant in the timescale of 14 days, which has been the practice in the past.On the face of it, it seems rather short time under certain circumstances. My suggestion of extending it to 28 days was purely a suggestion. Before we simply accept that the practice of the past is right, we need to know how much work has been done to check that it does work.
	My Amendment No. 105 in this group seeks to make it clear that time spent in detention counts fully towards the sentence, not just that it counts towards the sentence. I beg to move.

Lord Drayson: This group deals with amendments to the Summary Appeal Court—Amendments Nos. 101 to 105, relating to Clauses 140, 142 and 146. I shall focus on those amendments first. The Summary Appeal Court was first introduced under the Armed Forces Discipline Act 2000. The services have therefore had almost six years of practical experience of it. This has helped us considerably in drafting the Bill in that regard.
	With regard to Amendment No. 101 to Clause 140, we think that the 14-day initial period, which currently applies under the service discipline Acts, is one that sufficiently balances the interests of the offender, the services and the system generally. It must be remembered that there is an automatic right of appeal. So the individual is merely required to give notice of his intention to appeal and does not need to supply any grounds within this 14-day period. There is provision in Clause 140(2)(b) and (3) for this initial period to be extended with the leave of the court, either before the initial period expires or at a later stage. So in appropriate cases the offender will be permitted a longer period.
	One of the most important benefits of the summary hearing process is that it can deal with cases quickly. As long as this is balanced against the need for the accused to have a reasonable time in which to prepare his case, then dealing swiftly with summary cases, and that includes any appeal, should be the objective. This works in the interests of the accused, any victim and the interests of the services.
	To extend the initial period for appeal to 28 days would not assist in the aspiration that such lower level cases be heard and disposed of as soon after the original incident as is reasonable. There are no factors that suggest that the current 14-day period is causing any difficulty for appellants or unfairness. In those circumstances, I hope that the noble Lord will withdraw his amendment.
	Amendments Nos. 102 to 104 all relate to the period that an officer must have served before he is qualified to sit as a member of the SAC. First, they remove the provision that officers with an aggregate of three years' commissioned service are qualified, so that only those with three years' continuous experience would be qualified. Secondly, an officer who was a warrant officer is not subject to a three-year qualification. The amendment seeks to apply this exception to officers who were senior non-commissioned officers before they became commissioned officers. The provisions in the Bill ensure that those who act as a member of the Summary Appeal Court will have sufficient service experience, including the experience of commanding others, to properly undertake their responsibilities as a Summary Appeal Court member.
	Not all commissioned officers will have served continuously for a three-year period but will have over three years' aggregate experience. Some officers will have left their service and subsequently rejoined, or may have left their service to join another. The experience level of such officers is not diminished simply because of a break in their service. The amendments would have the effect of preventing such officers being appointed as a member of the Summary Appeal Court and would therefore reduce the pool of those who might be appointed as a member. It is not right or sensible to disqualify certain officers who possess the necessary skills and experience from membership of the SAC.
	On the second point, a warrant officer is qualified on the basis of the skills and experience that he will inevitably have acquired. A senior non-commissioned officer will not always have acquired those, and it would not therefore always be appropriate for an officer to qualify for membership simply because he previously held that rank. I therefore ask the noble Lord to consider not moving his amendments.
	On Amendment No. 105, I can reassure noble Lords that the clause as drafted means that the whole period which the appellant has served will be taken into account when the SAC considers substituting a term of detention and the length of it. The inclusion of "full" adds nothing. I trust, therefore, that noble Lords feel able to not move this amendment.
	Finally, I will deal with the government amendments in this group, which simply change the reference from the "Supreme Court" of Northern Ireland to the "Court of Judicature". The Supreme Court of Northern Ireland is renamed under the Constitutional Reform Act 2005 as the Court of Judicature of Northern Ireland. Although that term has not yet been commenced, it makes sense for the Bill to reflect it. It occurs first in Clause 142 in relation to membership of the Summary Appeal Court and then in Clauses 155, 348, 358, 359 and in Schedule 9, where there is a need to refer to specific legal qualifications including those of Northern Irish solicitors and barristers. I urge noble Lords to accept these amendments.

Lord Thomas of Gresford: This part of the Bill deals with trial by the court martial and Clause 154 deals with its constitution. We are seeking drastically to alter the way in which the court martial panel is chosen and to prescribe the number of people on it. The first amendment in the group is to subsection (1)(b), whereby the court martial would consist of a judge advocate and "five or seven" other persons, of whom,
	"a prescribed number must be officers or warrant officers".
	Then, by amendment, we seek that the rest may be drawn from all ranks who are qualified for membership and not ineligible under the clause.
	The amendment to subsection (1)(b)(ii) is to make provision in the court martial rules that the persons specified in subsection (1)(b) shall be drawn from each and every branch of the armed services. Then, under subsection (4), we seek that the members of the court are not to be specified by or on behalf of the court administration officer but selected by a ballot from a pool constituted of people eligible to sit as members of the court martial.
	In the same group, we go on to suggest a new clause after Clause 156 specifying that to qualify for membership of the court martial a person should simply be a serving member of the Armed Forces and subject to service law. It excludes only people who are, for example, members of the court service, members of the Military Police or those who have been involved in an investigation. That important alteration would open up the court martial across all ranks and not confine it, as at present, simply to officers, usually a single warrant officer.
	We also seek to include with these amendments the question of reports. Amendment No. 129 states:
	"No report of any description shall be made referring, whether favourably or unfavourably, to the decisions of any member of the court when sitting in the Court Martial".
	Members of the Committee will recall that I referred earlier to that as being an answer to the Morris point, where the European court had held that the court martial system, which enabled junior officers to be reported for the purposes of files, might affect the future career of those officers according to the way in which they conducted themselves in the court martial.
	Finally, we deal with the question of unanimity or, alternatively, majority verdicts, but in a very different way from the present type of majority verdict, which is a simple majority.
	Therefore, this is a complete recasting of the composition of the panel and, in many ways, it mirrors the evidence given by the Judge Advocate General, Judge Blackett, to the Select Committee when he was asked questions about it. Members of the Committee will recall that I have already referred to the fact that he wishes the court martial system to approximate as closely as possible to the civil Crown Court procedure in all the circumstances.
	I shall deal with these points in a number of ways. I turn, first, to the ability to have on the court martial members of all ranks. This would be quite different from the present situation. To my mind, one objection to the court martial system is precisely that the private soldier who appears before the court martial is appearing in front of officers or a very senior warrant officer, and that is an intimidating experience on any view. It does not begin to approximate the Magna Carta requirement of a trial by one's peers. The only way in which it can be said to comply with it is that Magna Carta requires a trial by one's peers or according to the law of the land. It is on that second part that, in argument in the House of Lords, the Government relied in the case of Boyd and others.
	That this is not such an amazing departure can be evidenced by the Universal Code of Military Justice, which was adopted in America in about 1952-53, when it was determined that the American system of courts martial was not compliant with the United States constitution. I am sure that it has been amended from time to time—certainly, an amendment is now part of Article 25. Your Lordships will forgive me if I read it because it illustrates how another common law country with a great tradition and all the safeguards of due process, which are contained in the constitution, has interpreted this problem.
	Article 25(c) states:
	"Any enlisted member of an armed force on active duty who is not a member of the same unit as the accused is eligible to serve on general and special courts-martial for the trial of any enlisted member of an armed force who may lawfully be brought before such courts for trial, but he shall serve as a member of a court only if, before the conclusion of the session called by the military judge ... prior to the trial or, in the absence of such a session, before the court is assembled for the trial of the accused, the accused personally has requested orally on the record or in writing that enlisted members serve on it".
	The first requirement in the American code is that there is a request by the defendant. It continues:
	"After such a request, the accused may not be tried by a general or special courts-martial the membership of which does not include enlisted members in a number comprising at least one-third of the total membership of the court, unless eligible enlisted members cannot be obtained".
	Once the request has been made, the second requirement in the American code is that one third, at least, be enlisted men. The code continues:
	"When it can be avoided, no member of an armed force may be tried by a court-martial any member of which is junior to him in rank or grade".
	That provision exists in this country. Although the defendant may require enlisted men if he is of the rank of sergeant or whatever, he cannot have people of lesser rank dealing with it. It continues:
	"When convening a court-martial, the convening authority shall detail as member thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service and judicial temperament. No member of an armed force is eligible to serve as a member of a general or special court-martial when he is the accuser or a witness of the prosecution or investigating officer".
	The authority that convenes has regard to the particular people who are part of the pool from which the court martial is chosen: a request from the defendant, one third of the membership, nobody of a rank below that of the defendant, people chosen for their experience, and so on. Those are the requirements in America. I see no reason why a similar system cannot be properly introduced in this country. One of the problems of the system is that there are class divisions within it. That is contrary to the temper of the United Kingdom in this day and age.
	I turn from that proposition to the one that the court martial, while not having to be unanimous, must by a significant majority find guilt before guilt can be established. In our amendment, where there are no fewer than seven members of the court, five of them must agree on the finding, and where there are five members of the court, four of them must agree. Where there is a non-unanimous finding of guilt, the president has to state in open court the number who agreed and the number who dissented from that finding. That is the equivalent of the majority verdict that exists in this country, and no doubt there would be directions by the judge advocate to the panel along the lines of the directions we are familiar with in the Crown Court.
	I refer again to the American experience, just to illustrate that these are not outrageous suggestions. The requirements in Article 52 of their code are that no person may be convicted of an offence for which the death penalty is made mandatory, except by unanimous verdict; no person can be convicted of any other offence unless two-thirds agree to that conviction; and no person is sentenced to life imprisonment or to confinement for more than 10 years unless three-fourths of the panel agree to those verdicts. The system in the States is much more conscious of due process. When they have majority verdicts, it is not just the simple majority that exists in this country.
	The argument that is always put for the other side is that magistrates decide by a majority, as may the Court of Appeal. In those circumstances, magistrates and judges are trained and experienced in court proceedings. When you are dealing with a panel of a court martial you are dealing with people who are not trained or experienced. They are much more akin to the juries we are familiar with.
	It is fairer and more within the spirit of the European Convention on Human Rights that we adopt majority verdict along the lines I have suggested in this amendment. It may be a considerable change from the present, but, supported by the chief judge of the system, I feel I am in a position to ask your Lordships to consent to it. I beg to move.

Lord Drayson: I shall begin with Amendments Nos. 117, 118 and 119 relating to Clause 154. Having listened to the arguments made by noble Lords in support of these amendments, I accept that there may be benefits in stipulating the minimum and maximum numbers of lay members who may sit at a court martial. I am clear, for example, that there would never be fewer than three members of a court martial, excluding the Judge Advocate, but I need to look at the implications of putting that on the face of the Bill. I will review the wording and, if I can, I shall bring forward an amendment on Report.
	Amendment No. 122, which goes to Clause 154, requires those who are chosen to act as lay members to be selected by a ballot system. I assume that the purpose of the amendment is to ensure that each member is randomly selected. This amendment is unnecessary because each service has a broadly similar system for selecting lay members that embrace the principle of random selection. That random selection produces a pool of qualified personnel from which court administration officers appoint members unless they are ineligible. Personnel who are serving on operational tours are not selected.
	Under the Bill, the intention is to continue to select personnel in a similar manner. Setting out a requirement for a balloting system on the face of the legislation might place an unnecessary burden on the system or create unfairness. There must be flexibility in the methods of appointing court members in order to take into account their services' organisational and operational requirements.
	The main effect of Amendment No. 120 toClause 154 and Amendment No. 128—the new clause—appear to be that persons of any rank would be qualified to act as lay members of the court martial. This amendment would not be welcomed by the services. Operational effectiveness underpins the military justice system. We think that court-martial members must have sufficient service experience, which includes having experience of commanding others. Those below the rank of warrant officer or newly commissioned officers will not always have this experience. Clause 155 in the current Bill was drafted on that basis.
	On the issue of personnel from different services on courts martial, it is possible that this new clause after Clause 156 also seeks to ensure that the lay members of the court always comprise of personnel from different services. The current wording of the Bill already allows for this. However, in most cases it is intended that the defendant will appear before a court made up of personnel from his own service. This was the preference of the First Sea Lord and the Chief of the General Staff who in their evidence to the Select Committee said that there should be a presumption for a single service board unless there is a good reason for a mixed board to be appointed—for example, when defendants from different services are tried together.
	Amendment No. 121 is, with respect to the noble Lord, unnecessary. Service personnel appointed to act as court members are currently drawn from all parts of their respective services. That will continue under the Bill. I believe that this matter is better dealt with in guidance.
	Amendments Nos. 123, 124 and 125 go to Clause 155. I have talked about eligibility for membership of the court martial and I will not go further on that matter. In responding to the points made by the noble Earl, Lord Attlee, and the noble Lord, Lord Garden, relating to continuous or aggregate service, it may be useful for me to state that we believe that a person who has been an officer for three years has considerable command experience, and we do not believe that he will lose this simply because he has a break in that experience.
	Amendments Nos. 126 and 127 to Clause 156 are unnecessary. As I have explained when dealing with Amendment No. 122, the services have three separate but broadly similar systems for selecting lay members which embrace the principle of random selection. Given this selection procedure, although it is not impossible, it is highly improbable that a person would be repeatedly appointed as a member of the court martial within an 18-month period.
	I understand the background to AmendmentNo. 129, but, as I said in my response to the chairman of the Joint Committee on Human Rights, we do not think it necessary or appropriate to take one element of the system—that relating to reporting procedures—and deal with it in legislation. What we have to ensure is that in practice all aspects of the system provide the necessary guarantees and impartiality including, as now, a prohibition on all reporting on the performance of the relevant participants. It is not necessary to make provision to this effect in the Bill. As with the decisions of jury members and others required to decide on the guilt of those accused of offences, the decisions of the members of the court martial should remain confidential.
	Currently, all members of a court swear under oath at the start of the trial not to disclose the vote or opinion of any of the members unless required through some legal obligation. Additionally the judge advocate reminds the members of their duty in this respect at the end of the hearing. It is intended that the same practices will continue at the court martial under the Bill.
	I deal next with Amendment No. 130 tabled in respect of Clause 159. The part of the amendment which prevents decisions being made on the basis of a simple majority is unnecessary.
	I have listened carefully to the arguments made by the noble Lord, Lord Thomas of Gresford, and his helpful description of the US system. I have also noted carefully the point he made about the fact that magistrates are trained. I will reflect on that, but we believe that the amendment is unnecessary. As he described, a summary trial in the magistrates' courts may be decided on the basis of a simple majority and most of the cases tried by the courts martial are akin to magistrates' courts trials, but I take on board his point about magistrates being trained. I will go away and reflect on that.
	With his experience, I am sure that the noble Lord is quite aware that many other jurisdictions allow simple majority verdicts, so I shall not labour that point here. I think that it is fair to say that there is nothing irregular or unsafe about a decision based on a simple majority vote system. Equally, we believe that it is unnecessary to require that a period of time must have elapsed before a decision based on a non-unanimous vote of members can be accepted.
	We believe that the proposal that the president should be required to state in open court the number of those who did not believe the accused to be guilty is inappropriate. As I said, the decisions of courts martial must be confidential. Disclosing those details would not be in the interests of justice, as that might influence the decisions of courts martial members, even if the identity of those dissenting or agreeing to the guilty verdict was not revealed.
	I turn to Amendment No. 131, and take on board the point made by the noble Lord, Lord Campbell of Alloway, about the structure with reference to Amendment No. 132. Focusing on Amendment No. 131, forthe reasons that I gave about the amendment toClause 159, it would be inappropriate to introduce a provision of this type. Again, I underline that we believe it to be vital that the decisions made by the members of the court martial remain confidential. If members of the court martial knew that the decision that they made might be disclosed, even if only for research purposes, they might be unduly influenced, regardless of whether those researching matters are placed under the same duty of confidentiality as court members.
	The amendment does not specify which members' decisions might be the subject of such research, so it might therefore extend to the judge advocate's decisions. It would be highly inappropriate for the decisions made by the judge advocate to be disclosed for such purposes and would not reflect any practice adopted in the civilian criminal justice system.

Earl Attlee: I am grateful for the Minister's response to my amendments, but precautions are taken to ensure that panel members are not in the same chain of command as the accused. If the accused is in one division, the panel members cannot be in that division. There are obvious reasons for that. However, how can the accused to be sure that members of the panel have not been specially selected to get the right result? How can he be confident of that?

Lord Thomas of Gresford: The Minister called to his aid the views expressed by very senior members of the armed services when they gave evidence to the Select Committee. I hope that he will give more weight to the view of the Judge Advocate General, who was for many years a serving officer in the Royal Navy and reached the heights of being Judge Advocate for the Fleet before he became Judge Advocate General. So his daily experience of the courts martial system is not to be ignored—I do not suggest that the Minister is ignoring it, but there is a great deal of weight to his view. Let us take for example his answer to the Select Committee on the number of members of the panel. He was asked by Mr Robert Key:
	"You say: 'For such a small panel to try more serious matters and impose long prison terms is objectionable'. Why is it objectionable?".
	He replied:
	"Because it is too far removed from the civil system ... A panel of three, ie three lay magistrates, have a certain limit to their powers of punishment and this is so far removed that it seems to me objectionable for those reasons".
	There is a great deal of weight in that. Magistrates have the power of imprisonment of only six months, or perhaps 12 months in the case of consecutive sentencing, whereas the court-marshal system, particularly if it is dealing with mandatory life sentences for murder cases and so on, has an almost unlimited power of imprisonment.
	Judge Blackett was then asked by Miss Vera Baird, who herself is a very experienced advocate, about same-service panels. His response was,
	"I think the premise upon which the Act is based is that there is a requirement for a single system of Service law because of operating patterns and more operating together and that sort of thing. If that is your initial premise then the panel membership should be a single system of Service law as well ... that is the logic of it. If you say no you need to have solely Army, solely Navy or solely Air Force panels then you are undermining your own argument for a single system of law".
	I fully commend that answer, which seems to make a great deal of sense. We are putting together a whole system of law, as the Minister has said today, that is not meant to draw distinctions between the various services. I put it to the Minister that he is advocating one-service panels only because of pressure from the services and their pride in the particular service to which they belong. That is not a good enough reason for continuing with the philosophy behind having a single-service legal system, which the Minister has outlined to us today.
	I am pleased that the Minister will reconsider the question of majority verdicts. I hope that he does, and if I can contribute by discussing the matter with him and others on such topics, I shall be delighted to do so before Report. This is a real opportunity to do something to bring the whole system up to date and to introduce a system of justice for members of the services that fits with the legal mores of the 21st century. There is too much harking back to the past in the services' opposition to change. It is natural; they are used to it. But we think that we should be looking at a broader picture to ensure that no serviceman can feel that he has not had a fair and just trial if he is convicted of a serious offence. For the moment, and pending further discussion, I beg leave to withdraw the amendment.